Employment Law Show 640 Toronto – S10 E35

Episode Summary

What employees should not do, terminated and not offered a bonus, severance pay, and more on Season 10 Episode 35 of the Employment Law Show on Radio 640 Toronto.

Listen below as Toronto Employment Lawyer and partner Jon Pinkus, Associate at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. Jon shatters myths and misconceptions about severance pay, terminations without and for cause, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, temporary layoffs and more.

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Episode Notes

I worked as an administrative assistant for over 25 years and was told I would receive a bonus. unfortunately, my department later closed and my severance did not include a bonus payment. Is this right?

Employers that have certain policies that could significantly impact an employee have a duty to ensure that all employees are aware of the policies in place. In some cases, the language in a policy might not be enforceable. Employees who are denied their bonuses should speak to an employment lawyer to determine whether or not they are being denied their rights.

I was terminated for cause as I made too many mistakes. This was a complete shock to me. Am I still owed severance?

Employers are permitted to terminate an employee without cause as long as adequate severance is offered. It is very difficult to correctly terminate an employee for cause and employers cannot do so simply due to minor mistakes made by an employee. Clear warnings and disciplinary actions have to be communicated by an employer to an employee in order to give the employee tools to improve and correct errors. Incorrectly terminating an employee for cause is considered a wrongful dismissal.

Should employees consider termination as they begin a new job?

While it can be uncomfortable for employees to consider the possibility of losing their job at the start of employment, it is important to consider severance pay. Employees who are given an employment contract should look closely at their agreement before signing it and seek legal advice from an employment lawyer.

Do employees often unconsciously give up their rights to termination pay?

Employees should never agree to sign a document while already employed before speaking to an employment lawyer. In many cases, a new contract seeks to limit an employee’s severance entitlements.

LEARN MORE ABOUT SEVERANCE PAY
• Severance in Ontario

Are employees obligated to respond to negative criticism?

Employees should always respond to criticism or improvement plans proposed by their employer in writing. Criticisms and warnings can be used by their employers to build a case against an employee in order to terminate for cause in the future. Employees should also be open and honest with their employers and own up to mistakes and errors in judgement.

Should employees keep a record of events at the workplace?

EMployees should always keep a record of events at the workplace such as disciplinary action, incidents involving harassment or bullying, taking a leave, etc. All records of events should be conducted in writing and can be as simple as an email sent to an employer.

Can employees assume their severance offer is inadequate?

Employers are not incentivized to offer the maximum amount of severance to their employees, particularly if more than one employee is being let go. Employers ask employees to sign a release and pressure them to do so by a certain deadline. It is safe to assume that an initial severance offer is inadequate. EMployees should not sign the severance offer before seeking legal advice as once an agreement is signed, no further action can be taken.

How does the law define workplace harassment?

It is important to distinguish what harassment is not. In many cases, employees are complaining about unfair treatment or bad management and not harassment. Harassment in the workplace is defined as a course of serious misconduct that is considered unwelcome. Harassment must be considered to be objectively bad behaviour.

What should an employee do if they feel they’re being harassed at their workplace?

In some companies, it can be difficult for employees to seek help internally, particularly in smaller businesses. Employees should always bring forth complaints in writing to the appropriate department. Employees are within their rights to suggest possible solutions to the problems as well as speak to co-workers who have witnessed incidents of harassment.

Are employers obligated to intervene when complaints of harassment have been brought forth?

Employers need to assess the situation and determine how complicated the complaints of harassment are between parties. In some cases, external help is necessary. An adequate workplace investigation must be conducted and steps must be taken to rectify the solution.

Can I be disciplined for getting in an argument with a co-worker and losing my temper?

Employers are within their rights to discipline employees who are exhibiting misconduct or bad behaviour in the workplace. It is, however, difficult to terminate an employee for cause due to some incidents of misbehaviour.

I was let go due to off-duty behaviour and not offered severance. Is this right?

Employers who terminate employees for cause due to behaviour outside of the workplace have to be able to prove that the behaviour exhibited affects the company. Employees who are not in a public-facing role should not be penalized for conduct that does not affect their employer. Employees who have been fired for cause are within their rights to speak to an employment lawyer.